Estate of Shirley L. Benson
04-15-00087-CV
| Tex. App. | Mar 23, 2015Background
- Appellant (Thomas M. Benson, Jr., as Trustee) removed the state-court proceedings (Renee Benson v. Thomas Benson, Jr., Cause No. 155,572-A) to federal court on March 18, 2015, asserting diversity and federal-question jurisdiction and arguing removal is timely.
- Removal targets the combined state-court pleading that includes (1) Renee Benson’s original petition to remove Benson as Trustee and (2) a March 2, 2015 Plea in Intervention by temporary co-receivers that asserts claims against Benson in his personal capacity (including challenges to a $550 million asset reacquisition and ownership of Bensco stock).
- Defendant/Trustee contends the Plea in Intervention alters the character of the case substantially (invoking the Fifth Circuit “revival” exception and 28 U.S.C. § 1446(b)(3)), creating new claims and thereby restarting the removal period.
- Removal papers assert both diversity jurisdiction (complete diversity; amount in controversy > $75,000 due to asserted value of trust assets and Bensco interests) and federal-question jurisdiction (resolution requires interpreting federal grantor-trust provisions under the Internal Revenue Code, specifically 26 U.S.C. § 675 and related sections).
- Appellee (Renee) filed a motion in the state appellate court asking that the appeal (and briefing schedule) be abated because 28 U.S.C. § 1446(d) requires state courts to cease proceedings after notice of removal until remand; parties agree to a 14-day briefing period after remand but reserve rights to seek more time.
Issues
| Issue | Plaintiff's Argument (Renee) | Defendant's Argument (Benson) | Held |
|---|---|---|---|
| Timeliness of removal | Not directly addressed in appellee motion to abate; opposes state-court activity after removal | Removal timely: filed within 30 days after service of the Plea in Intervention; also argues revival exception restores 30-day window | Appellate court should abate proceedings under 28 U.S.C. § 1446(d); timeliness of removal not decided by state appellate court in this filing |
| Availability of federal diversity jurisdiction | As originally pleaded, petitioner (Renee) framed trust-removal claim (non-monetary) against trustee; asserts state forum appropriate | Benson: amount in controversy > $75,000 (trust assets, Bensco interests); complete diversity exists (Benson domiciled in Louisiana; plaintiffs/co-receivers in Texas) | Jurisdictional facts are alleged by Benson; federal court must determine later whether diversity jurisdiction exists (not yet adjudicated in this state filing) |
| Availability of federal-question jurisdiction | Plaintiff relies on state-law trust/removal claims | Benson: plaintiffs’ claims require resolution of substantial federal tax law questions (grantor-trust status under IRC §§ 671–679 and effect of § 675(4) exchanges), so federal-question jurisdiction exists | Benson alleges a substantial federal issue; whether federal-question jurisdiction actually exists is for the federal court to decide (not decided here) |
| Whether state appellate proceedings should be stayed/abated | Requests abatement of appeal and briefing schedule while removal is pending; seeks reset of appellee brief deadline 14 days after remand | Opposed to further state-court proceedings while removal is pending (consistent with § 1446(d)); removal notice was served | Court of Appeals is asked to abate the appeal and briefing schedule pending resolution of the federal removal; abatement is the relief sought and consistent with cited Texas precedent (abate until remand) |
Key Cases Cited
- Lattin v. Barrett, 153 S.W.3d 700 (Tex. App.—Waco 2005) (abating state appellate proceedings after removal pending remand)
- Quaestor Invs., Inc. v. State of Chiapas, Mex., 997 S.W.2d 226 (Tex. 1999) (state appellate abatement following removal)
- Johnson v. Heublein, 227 F.3d 236 (5th Cir. 2000) (revival exception: an amended or intervening pleading that substantially alters the character of the action can restart the removal period)
- St. Paul Reins. Co. v. Greenberg, 134 F.3d 1250 (5th Cir. 1998) (amount-in-controversy for non-monetary relief equals the value of the right to be protected)
- Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995) (facially apparent test for amount in controversy)
- Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 (5th Cir. 2002) (removal procedure and proof of amount in controversy)
- Singh v. Duane Morris LLP, 538 F.3d 334 (5th Cir. 2008) (federal-question jurisdiction where plaintiff's right to relief necessarily depends on resolution of a substantial federal issue)